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The lawsuit between the Free Software Foundation (FSF) and Cisco may be critical in shaping the future of the open source ecosystem, according to legal experts closely watching the saga’s next stages.
The FSF filed its legal complaint against Cisco last month, alleging that the networking giant violated the terms of the GPL, or General Public License
Experts say the lawsuit — about which both parties have been tight-lipped — is about more than just about protecting the code-availability tenets of the free software license. Instead, they’re weighing the wider impact that a court decision could have on setting legal precedent for GPL compliance and infringement.
“Certainly, the FSF emphatically wishes to ensure source code availability. That is a real, root issue and source code availability is a core value of FSF,” Michael Bennett, a partner at Wildman Harrold in Chicago told InternetNews.com. But he said another key issue is whether the FSF will be able to recover monetary damages through an interpretation of the GPL.
Since there is no charge for most open source software, the legal grounds for an author to seek damages may be murky, he said. That’s where two different interpretations come into play: Bennett said that under copyright law, remedies are available that aren’t available under contract law.
“FSF may be attempting to establish a precedent that copyright law principles apply,” he said. “Few, if any, U.S. judicial decisions have substantively interpreted the General Public License.”
“For instance, FSF is seeking injunctive relief, which, if granted, could prevent Cisco from distributing product with FSF code,” he added.
Taking on a giant
The FSF’s case against Cisco — the culmination of more than two years of sparring over the licensing issue — also comes following the Software Freedom Law Center (SFLC)’s successful negotiation of a settlement with at least four other vendors over GPL violations in recent years, on behalf of the developers of BusyBox.
The SFLC is representing the FSF in its lawsuit against Cisco, and at least one legal expert speculates that the SFLC’s recent success may have emboldened the FSF to take on Cisco.
“Any lawyer will tell you that trends in litigation are often countercyclical to the economy in general, in large part because organizations generally grow less tolerant in difficult economic times of others infringing their rights and cutting into their markets,” Jason Haislmaier, a partner in the tech and intellectual property group at law firm of Holme Roberts Owen, told InternetNews.com.
[cob:Pull_Quote]”Of course, the FSF is not a for-profit business,” he said. “But, with the suits brought by the BusyBox developers having broken the ice — and having all ended in settlements involving cash payments of one sort or another — I would not be surprised if the FSF views this at least in part as an opportunity to recoup some of the legal costs it has sunk into its years of dealings with Cisco.”
Beyond just the legal activities of the SFLC, the FSF action against Cisco could potentially serve to build on the legal precedent of the ruling of the Jacobsen vs. Katzner case in August 2008. In the case, the U.S. Court of Appeals for the Federal Circuit (CAFC) established the precedent that an open source software license is legal and enforceable within the U.S. court system.
“The Jacobsen case stands largely for the idea that open source licenses are enforceable,” Haislmaier said. “It has, at the present time, however, done little to interpret the substantive terms of any open source licenses. Perhaps the push from Jacobsen and the BusyBox cases helped embolden the FSF to bring its case against Cisco. But, I do not see the Cisco case as a move by the FSF to build on the lead provided by Jacobsen.”
Yet Bennett said he believes the FSF may be seeking to extend the principals established in Jacobsen to the Cisco case.
[cob:Special_Report]”Though Jacobsen involved a different open source license, the Artistic License, some of the issues are similar,” Bennett said. “In Jacobsen, the court held that Katzner infringed Jacobsen’s copyright. That opened the door to copyright damages, including injunctive relief, which is typically difficult to obtain in a contract-based case. If FSF is able to establish that its copyright was infringed, many questions about the enforceability of the GPL could be answered.”
Looking at a resolution
So far, the major players in the lawsuit aren’t saying much.
“We’ve been in touch with Cisco since the filing,” Brett Smith, licensing compliance engineer at the FSF, told InternetNews.com. “We’re hopeful that the discussions will result in a quick and amicable resolution of the matter.”
Smith said the FSF has not yet been given a court date for the complaint.
Cisco spokespeople did not return requests for comment by press time.
Page 2: Resolution — and the impact on enterprise users
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Haislmaier suspects that both the FSF and Cisco will likely want to resolve the case out of court, for a number of reasons. To date, no case has ever progressed far enough in the judicial system to enable the courts to weigh in on the GPL — a fact that makes the FSF appear as both judge and jury when it comes to interpreting it.
“This situation has definitely benefited the FSF, as it has led to the FSF becoming the de facto interpreter of the GPL — to the extent that many erroneously assume that the burden is on the party opposite the FSF to justify its interpretation of the GPL and no longer on the FSF to justify its own interpretation,” Haislmaier said.
“A court decision substantively interpreting the GPL, even a decision favorable to the FSF, draws a legal line in the sand,” he added. “While that line could adopt the views of the FSF in the case at hand, there is no guarantee that this would be the result — particular when the other side is a legally sophisticated and deep-pocketed defendant like Cisco.”
Haislmaier argued that in his view, the FSF has often used to its advantage the inherent ambiguity over some of the key provisions of the GPL — for instance what forms a “work based on the program” or what constitutes a “distribution”.
“This is not to say that they have been unfair or unethical, just that as any savvy software licensor would do, they have used the interpretation of their license to their advantage,” Haislmaier noted. “While Cisco almost certainly has some fault in its alleged non-compliance, the environment of ambiguity around the interpretation of the GPL cultivated by the FSF(or at least not meaningfully dispelled by the FSF over the years) certainly plays a role as well.”
Impact on enterprise open source users
Regardless of the outcome the FSF-Cisco lawsuit, the debate has once again brought open source legal issues to the forefront. It’s also prompted enterprises using open source — and those considering it — to wonder about the route for using and redistributing open source, according to Haislmaier, who represents open source services vendor OpenLogic and said he’s been fielding inquiries relating to the lawsuit’s potential impact.
“For those invested in open source, the case has definitely raised some concerns,” Haislmaier said. “For companies that distribute software, whether large or small, we continue to recommend that they should absolutely be auditing their code for open source and ensuring they fulfill all of the license obligations that are found. Believe it or not, many companies simply continue to avoid this obligation.”
Haislmaier added that others do try to comply, but most don’t end up being 100 percent-compliant without some kind assistance.
[cob:Special_Report]”As an example, a system that depends on self-reporting by developers of the open source code used and licenses involved will typically miss a large percentage of the open source actually in use,” he said. “This typically has little to do with the veracity of the developers and more to do with the complexity of the environment in which they work — open source reporting is simply not something that humans do well.”
Haislmaier recommends that software developers and other companies that distribute software put in place a process and policy to uncover and follow open source license obligations. He also pointed to tools to used to help identify open source code and licenses — ranging from vendors like Black Duck and his client, OpenLogic, to free tools like FOSSology.
“Of course, solid legal expertise in open source to back-up the processes and policies is also essential,” Haislmaier said.
